Response to Rusty on the 9th Amendment

Rusty Lopez has written yet another response to something I've written, but this time on a different subject. This time it's in response to a post I made on gay marriage and the notion of judicial activism. In particular, he is objecting to my arguments concerning the 9th amendment and unenumerated rights. He quotes a long passage from my essay on the subject, and quotes a long passage from Kyle Still's essay on the 9th amendment that I referenced, then raises his objections. He begins:

There are at least two things that should be addressed here: 1) The inherent difference between enumerated rights in the Constitution and all other rights, and 2) the double-speak regarding authors intentions and how to interpret the meaning of a text.

The examples listed of rights we enjoy, but which have not been enumerated in the Constitution, do not reveal valid rights inasmuch as they reveal the rulings of judges. They remain and will always remain the opinions of the court...

Rulings are fallible inalienable rights are not.

The "examples listed" that he refers to was a short list in Kyle's essay to court rulings that recognized rights that were not enumerated in the constitution originally but are still considered rights today. Unfortunately, Rusty truncates the list, skipping from 1 to 7 with nothing in between.

Let me give the full list as Kyle wrote it:

(1) The right to retain American citizenship, despite even criminal activities, until explicitly and voluntarily renouncing it (Afroyim v. Rusk, 1967);

(2) The right to receive equal protection not only from the states but also from the federal government (Bolling v. Sharpe, 1954; Weinberger v. Wiesenfeld, 1975; Adarand Constructors, Inc. v. Pena, 1995);

(3) The right to vote, subject only to reasonable restrictions to prevent fraud, and to cast a ballot in equal weight to those of other citizens (Baker v. Carr, 1962; Gray v. Sanders, 1963; Wesberry v. Sanders, 1964; Reynolds v. Sims, 1964; Harper v. Virginia State Board of Elections, 1966; Rogers v. Lodge, 1982);

(4) The right to presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime (In re Winship, 1970; Estelle v. Williams, 1976; Taylor v. Kentucky, 1978; Sandstrom v. Montana, 1979; Jackson v. Virginia, 1979);

(5) The right to use the federal courts and other governmental institutions and to urge others to use these processes to protect their interests (Slaughter-House Cases, 1873; NAACP v. Button, 1963);

(6) The right to associate with others (De Jonge v. Oregon, 1937; NAACP v. Alabama, 1958);

(7) The right to enjoy a zone of privacy (Griswold v. Connecticut, 1965);

(8) The right to travel within the United States (Crandall v. Nevada, 1868; Shapiro v. Thompson, 1969);

(9) The right to marry or not to marry (Loving v. Virginia, 1967; Zablocki v. Redhail, 1978);

(10) The right to make one's own choice about having children (Griswold; Eisenstadt v. Baird, 1972; Carey v. Population Services, 1977; Roe v. Wade, 1973);

(11) The right to educate one's children as long as one meets certain minimum standards set by the state (Pierce v. Society of Sisters, 1925);

(12) The right to choose and follow a profession (Allgeyer v. Louisiana, 1897; Meyer v. Nebraska, 1923; Gibson v. Berryhill, 1973);

(13) The right to attend and report on criminal trials (Richmond Newspapers v. Virginia, 1980)

It should be noted here that this list did not originate with Kyle, but was taken from a standard constitutional law textbook. All of these are examples of rights that you and I - and Rusty, I would bet - take for granted, yet they are not listed in the bill of rights. Obviously, the founders could not list every single right that the individual enjoys. You take for granted that you have the right to choose what kind of shoes to wear and that if the legislature passed a bill banning the wearing of sneakers in the US, you would assume that such a law was unconstitutional, right? But the bill of rights doesn't mention footwear at all and nowhere in the text does it say that you have such a right. Does that mean that the legislature can pass a bill outlawing sneakers? Of course not. This is an example of an unenumerated right, one that is not explicitly laid out in the text of the constitution, yet remains valid.

Rusty, on the other hand, seems to reject this notion, but I doubt he really rejects it in general. I suspect he only rejects it when it is used to recognize rights that he doesn't approve of. If he were to apply his argument consistently to every ruling that recognized an unenumerated right, he would reject all sorts of rulings that I'm sure he would consider perfectly valid, yet he has explicitly stated that all rulings involved unenumerated rights "do not reveal valid rights".

Would Rusty really argue that the right to presumption of innocence is not a "valid right"? If Congress passed a law violating that right, would he argue against any legal challenge to such a law? I doubt it. Would he really argue that a law restricting the right of people to leave one state and go to another is constitutional because the right to travel freely is not specifically mentioned in the constitution and was merely an "opinion of a judge" and hence not a "valid right"? I doubt it. How about the right to homeschool your children? The constitution does not mention such a right, but the courts have found that people do retain the right to do so. Would Rusty argue that parents don't have a right to homeschool their children because that ruling was merely a judge's opinion and therefore it did not "reveal a valid right"? Again, I doubt it.

Rusty skips over all of those cases that were listed in Kyle's blog and focuses instead on the right to privacy that was the basis for Griswold v Connecticutt. Why? I think Rusty tells us himself:

What happens when this right to privacy is attached to the act of abortion? A new right suddenly emerges, popping into existence at the judges bidding the so-called Womans Right to Choose (to end the life of her unborn child).

I think what's going on here is exactly the sort of thing I discussed in previous essays on the inconsistency of conservative legal theories such as "original intent" and "strict constructionism". He doesn't like a specific outcome of penumbral reasoning and the recognition of unenumerated rights, so he argues that those things are, in general, invalid. But that's not a logical conclusion, unless he is prepared to jettison all unenumerated rights and all instances of penumbral reasoning as invalid. Nor do I think it's necessary to throw out the unenumerated rights baby with the abortion bathwater. I think one can make a case against Roe v Wade on solid legal grounds, or contest the legal reasoning of the decision within the confines of both enumerated and unenumerated rights, without claiming that all rulings recognizing such rights are invalid. And that would be a lot more consistent, in my view.

Lastly, Rusty says this:

This leads into the sloppy interpretive skills within analyses such as those of Ed and Kyle. With regards to specific issues we are told that it is impossible to know the intent of the framers of the Constitution. It appears that he attempts to get around this self-imposed hurdle by referring to an implied intent that the courts have found or construed. But this just raises another hurdle for only the author of the text can imply intentions within his text. Either the intent is there or it is not...Like it or not, the Constitution is not living it is static. It says what it says and no amount of legalistic gyrations can make it say anything more or anything less.

I'm not sure where Rusty gets the notion that anyone is arguing that it's "impossible to know the intent of the framers of the Constitution". I certainly didn't argue that, nor do I think Kyle did. More importantly, I am left to wonder what Rusty thinks the intent of the 9th amendment was, if not to insure that the people retain rights that were not enumerated in the constitution, as it explicitly states. The text of the amendment says it; the framers spoke at great length of the need for it and the intent of that text; what exactly is at doubt? If they did not intend for unenumerated rights to have legal validity and protection, then what was the intent of the 9th amendment in Rusty's view?


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Actually Ed, I picked the so-called right to privacy because it appeared that Kyle focused on it and because it was the easiest one for me to address.

I'll post on your comments later.

Yes, Kyle's essay was primarily about the right to privacy and the 9th amendment, but the post of mine you were responding to was much more general. But even if it only dealt with a right to privacy, you go entirely too far. Would you say that we have no right to privacy under ANY circumstances because those exact words are not in the constitution? If the government put taps on all of our phones - not as part of a criminal investigation, but just because they wanted to listen in - would that be okay? The constitution doesn't say they can't. By your reasoning, this would have to be allowed.